Wednesday 19 February 2014

Devolution of interest of coparcenary property for daughters.

Devolution of interest of coparcenary property for daughters.

 

1[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]
Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]
Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.


Preferential right to acquire property in certain cases

Preferential right to acquire property in certain cases. –

 

 

(1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class 1 of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.- In this section, ‘court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.


of succession and manner of distribution among heirs of a female Hindu.

Order of succession and manner of distribution among heirs of a female Hindu. –

 

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate property among those heirs shall take place according to the following rules, namely:-
Rule 1 .- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously.
Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’ death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.
Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.


rules of succession in the case of female Hindus.

 General rules of succession in the case of female Hindus.-


(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
(b) secondly, upon the heirs of the husband.
(c) thirdly, upon the heirs of the father, and
(d) fourthly, upon the heirs of the father, and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter ) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
COMMENTS
Extent
(i) When a female inherits property from her brother, inheritance to it is governed by section 15(1) of the Act 1956; Balasaheb v. Jaimala, AIR 1978 Bom 44.
(ii) Son and daughter include son and daughter by natural birth legitimate or illegitimate; Gurbachan v. Khichar Singh, AIR 1971 Punj 240.
Succession on death of Hindu female
(i) The object of section 15(2) is to ensure that the property left by a Hindu female does not lose the real source from where the deceased female had inherited the property, one has no option but to hold that son or daughter (including the children of any pre-deceased son or daughter) of such a Hindu female will mean the son or daughter begotten by the Hindu female from the husband whose property she had inherited, and not the son or daughter whom she had begotten from a husband other than the one, whose property she had inherited. If such property is allowed to be drifted away from the source through which the deceased female has actually inherited the property, the object of section 15(2) will be defeated; Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.
(ii) Hindu female inherited property from her deceased husband. If the property is allowed to be inherited by a son or daughter, whom the deceased female had begotten not through her husband, whose property it was, but from some other husband then, section 15(2)(b) will become meaningless and redundant; Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.
(iii) The intent of the Legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So also under clause (b) of sub-section (2) of section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and later acquired the full right, in any way, would not alter the rules of succession given in sub-section (2) of section15; Bhagat Ram (D) by L.Rs. v. Teja Singh (D) by L.Rs., AIR 2002 SC 1.
(iv) The mother became an absolute owner of the property which she inherited from her husband after his death in 1950 but after the Hindu Succession Act, 1956 came in force, before 1956 her interest being limited. Hence, it has been held that the property after the death of the mother shall be inherited by her son and daughter under section 15(1)(a) and not under any other provision of law; Debahari Kumbhar v. Sribatsa Patra, AIR 1994 Ori 86.


Property of a female Hindu to be her absolute Property.

Property of a female Hindu to be her absolute Property.-

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or note, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

COMMENTS

Absolute ownership of property

(i) Property given to widow in lieu of her maintenance, after coming into force of Hindu Succession Act, ripens into full estate and widow becomes absolute owner in view of section 14(1) of the Act; Santosh v. Saraswathibai, AIR 2006 Kant 85.

(ii) The respondent had a limited widow’s estate in the scheduled properties which was given to her in lier of her maintenance and the same ripened into an absolute estate in view of the provisions of section 14 (1) of the Act. Thus, the Act made her an absolute owner; Yemanappa Dudappa Marve v. Yelubai, AIR 2003 Karn 396.

(iii) Any property possessed by a Hindu female, irrespective of how it was acquired, becomes her absolute property after coming into force of the Act in view of the operation of section 14(1); Chaudhary v. Ajudhia, AIR 2003 NOC 126 (HP).

(iv) The testator had given the property to Sarjabai only for a limited period, hence she would not be its absolute owner under sub-section (1) of section 14. The property would, in fact, be governed by sub-section (2) of section 14 as the court should give effect to the intention of the testator; Bhura v. Kashiram, AIR 1994 SC 1202.

(v) Sub-section (2) of section 14 must be read as a proviso or exception to sub-section (1) of section 14 and its operation must be confined to cases where property is acquired for the first time as a grant without any pre-existing right. If the female had an existing interest in the property, the interposition of any instrument will not affect the operation of sub-section (1) of section 14 and the property will be held by the female as her absolute property; M. Shamugha Udayar v. Sivanandam, AIR 1994 Mad 123.

(vi) When some property is allotted to the widow in lieu of her claim for maintenance, she becomes its absolute owner; V. Tulsamma v. Sesha Reddy, AIR 1977 SC 1944.

(vii) The right of the alliance is co-extensive with that of the widow; Jagat Singh v. Teja Singh, AIR 1970 P&H 309 (FB).

Extent

(i) The words “any property possessed by a female Hindu” include actual as well as constructive possession. Even when the property is in the possession of a trespasser, she is in its constructive possession; Mangal v. Ratno, AIR 1967 SC 1786.

(ii) The word ‘possessed’ is used in the broad sense and in the context means the state of owning or having in ones hand or power; Gurumalappuru v. Setra, AIR 1959 SC 577.

Scope

(i) The expression “female Hindu” in the heading of section 14 of the Act as well as the expression “any property possessed by a female Hindu” have to be given a wider interpretation in consonance with the wishes and desires of the framers of the Constitution. The expression ‘female Hindu’ would take in “daughter” also. Therefore, limited interest of daughter in property would get enlarged to full right after the commencement of the Act; Jose v. Ramakrishnan Nair Radhakrishnan, AIR 2004 Ker 16.


(ii) If no property is given in lieu of maintenance and only a sum of money is given, then section 14 does not apply; Sulabha v. Abhimanyu, AIR 1983 Ori 71.

Distribution of property after death, if there is no Will.

Distribution of property after death, if there is no Will.


General rules of succession in the case of males.-

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule.
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and
(d) lastly, if there is no agnate, then upon the cognate of the deceased.

COMMENTS

Ownership of property

When a Hindu inherits the property from his father under section 8 he takes it as his separate property and not as joint family property vis-a-vis his sons; Commissioner of Wealth-tax v. Chander Sen, AIR 1986 SC 1752.
Scope
The property in section 8 includes agricultural land also; Tukaram Genba Jadhav v. Laxman Genba Jadhav, AIR 1994 Bom 247.

9. Order of succession among heirs in the Schedule.-

Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.

10. Distribution of property among heirs in class 1 of the Schedule. -

The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-
Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together, shall take one share.
Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.- The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
11. Distributions of property among heirs in class II of the Schedule. -
The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.

Daughters’ rights of property in agriculture land.

Daughters’ rights of property in agriculture land.

THE Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the Government finally addressed some persisting gender inequalities in the 1956 Hindu Succession Act (1956 HSA), which itself was path-breaking. The 2005 Act covers inequalities on several fronts: agricultural land; Mitaksharajoint family property; parental dwelling house; and certain widow's rights (see box). Some anomalies persist, but first, consider the achievements.

Achievements


Agricultural land: One of the most significant amendments in the 2005 Act is deleting the gender discriminatory Section 4 (2) of the 1956 HSA. Ironically, this amendment almost went unnoted, with Members of Parliament demanding during the Lok Sabha debate, what had already been done. Section 4(2) exempted from the purview of the HSA significant interests in agricultural land, the inheritance of which was subject to the devolution rules specified in State-level tenurial laws. In States where these laws are silent on inheritance, the HSA applied by default, as also where the tenurial laws explicitly mention the HSA. But, in Delhi, Haryana, Himachal Pradesh, Punjab, Jammu and Kashmir, and Uttar Pradesh, the tenurial laws specify inheritance rules that are highly gender unequal. Here, primacy is given to male lineal descendants in the male line of descent and women come very low in the order of heirs. Also, women get only a limited estate, and lose the land on remarriage. Moreover, in U.P. and Delhi, a "tenant" is defined so broadly that these inequalities effectively covered all agricultural land. U.P. alone has 1/6 of India's population. This clause thus negatively affected innumerable women farmers.
The 2005 Act brings all agricultural land on par with other property and makes Hindu women's inheritance rights in land legally equal to men's across States, overriding any inconsistent State laws. This can benefit millions of women dependent on agriculture for survival, as elaborated further below.


Mitakshara coparcenary property:

 The second major achievement lies in including all daughters, especially married daughters, as coparceners in joint family property.
The 1956 HSA distinguished between separate property and joint family property. The separate property of a (non-matrilineal) Hindu male dying intestate (that is without leaving a will) devolves, in the first instance, equally on his class I heirs, namely, son, daughter, widow and mother (plus specified heirs of predeceased children). If previously governed byDayabhaga, this rule applied also to joint family property. But, if previously governed by Mitakshara (which covers most of India), a different rule applied. In the deceased man's "notional" share in Mitaksara joint family property, the class I heirs were entitled to equal shares. But sons, as coparceners in the joint family property additionally had a direct birth right to an independent share; while female heirs (e.g. daughter, widow, mother) had claims only in the deceased's "notional" portion. Also, sons could demand partition; daughters could not.
The 2005 Act does not touch separate property (except broadening the class I heirs). But it includes daughters as coparceners in the Mitaksara joint family property, with the same birthrights as sons to shares, to claim partition, and (by presumption) to become karta (manager), while also sharing the liabilities. In addition, the Act makes the heirs of predeceased sons and daughters more equal, by including as class I heirs two generations of children of predeceased daughters, as was already the case for sons.


Dwelling house, widow's claims:

 Third, the Act deletes Section 23 of the 1956 HSA, thereby giving all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house. Section 23 did not allow married daughters (unless separated, deserted or widowed) even residence rights in the parental home. Unmarried daughters had residence rights but could not demand partition.
Fourth, the Act deletes Section 24 of the 1956 HSA, which barred certain widows, such as those of predeceased sons, from inheriting the deceased's property if they had remarried. Now they can so inherit.


Implications


These amendments can have far-reaching implications for women. First, as elaborated in the book, A Field of One's Own (Bina Agarwal), and subsequent papers, gender equality in agricultural land can reduce not just a woman's but her whole family's risk of poverty, increase her livelihood options, enhance prospects of child survival, education and health, reduce domestic violence, and empower women. My research on Kerala recently, with a colleague, shows that women's risk of physical violence from husbands is dramatically less if they own land or a house: the incidence is 49 per cent among women without property, but 18 per cent among landowning women, and seven per cent if they own both land and house. Land in women's hands can also increase agricultural productivity, given male outmigration and growing female-headedness.
There is a popular misconception that gender-equal inheritance laws can only benefit a few women. In fact, millions of women — as widows and daughters — stand to gain. Calculations based on NSS data for all-India indicate that at least 78 per cent of rural families own some agricultural land; and if we include homestead plots, 89 per cent own land. Although most own very small fields, rights even in these can provide supplementary subsistence.

The risk of fragmentation is another oft-repeated argument. This argument is misleading and cannot justify selectively disinheriting women. Fragmentation can occur even when sons inherit. In practice, many rural families continue to cultivate jointly even when parcels are owned individually. The same can hold for daughters. Fragments per holding for all-India actually declined from 5.7 in 1961 to 2.7 in 1991.
Another opposition argument is that women migrate on marriage. But one might ask: if men retain their claims despite job-related migration, why shouldn't women on marriage-related migration? They could lease out the land to their family or someone else, or cultivate it cooperatively with other women. This would give women some economic security, however small. In Sri Lanka, I met women who owned only coconut trees in their birth village, but who received their share of coconuts every harvest with pride.
The second significant change — making all daughters (including married ones) coparceners in joint family property — is also of great importance for women, both economically and symbolically. Economically, it can enhance women's security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain. Also, as noted, women can become kartasof the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband's family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.
Giving married daughters coparcenary rights from the start is unusual. Except Kerala which abolished joint family property altogether, in other State-level amendments of the 1956 HSA — viz. Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra — only daughters unmarried when the amendments were passed got coparcenary rights. Notably, however, they retained this right on subsequent marriage, and fears of extensive litigation by such married daughters have proved false.
Under the 2005 Act, married daughters will also benefit by the deletion of Section 23, since now they will have residence and partition rights in the parental dwelling house. In particular, women facing spousal violence will have somewhere to go. The only negative aspect is that allowing partition could increase the vulnerability of elderly parents. A preferred alternative would have been to bar both sons and daughters from seeking partition during their parents' lifetimes, if the family had only one dwelling.


Remaining anomalies


Some other anomalies also persist. One stems from retaining the Mitaksarajoint property system. Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased's widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow's potential share will now equal the son's and daughter's. But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow's potential share will fall below the daughter's. Abolishing the Mitakshara system altogether would have been more egalitarian, as some of us had suggested.
But such abolition needed to be dovetailed with partially restricting the right to will (say to 1/3 of the property). Such restrictions are common in several European countries. Otherwise women may inherit little, as wills often disinherit them. However, since the 2005 Act does not touch testamentary freedom, retaining the Mitaksara system and making daughters coparceners, while not the ideal solution, at least provides women assured shares in joint family property (if we include landholdings, the numbers benefiting could be large).

The process


It has been a long journey since the 2004 Bill was tabled in the Rajya Sabha last December. Based on the Law Commission's 174th Report, the Bill reproduced its shortcomings. Rather than the Kerala route, the Report and Bill followed the other State-level amendments, and ignored agricultural land, married daughters, etc. At the same time, the 2004 Bill reflected the Government's commitment to reform. This commitment was tapped by civil society over eight months to seek comprehensive amendment. Concerted efforts made by individuals and groups committed to women's rights, land rights, and human rights, through memorandums, depositions, and lobbying; the openness of the Standing Committee on Law and Justice to civil society inputs; the support of some lawyers and MPs, all contributed to the shift from the limited 2004 Bill to the wide-ranging 2005 Act.
The history of this process will no doubt be written sometime. But our experience does suggest that initiatives taken even by a relatively small number of committed individuals and groups, endorsed and supported by grassroots organisations and people from across the country, with a government and Parliament that have the will to reform, can go a long way.
The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy; efforts to enhance social awareness of the advantages to the whole family if women own property; and legal and social aid for women seeking to assert their rights, are only a few of the many steps needed to fulfil the promise of this long-due legislation.


Page sources: http://www.hindu.com/mag/2005/09/25/stories/2005092500050100.htm

partial partition of joint undivided property.

 partial partition of joint undivided property.



The suit property is claimed to be the joint family property of the plaintiffs and defendants 1 to 3. In 1948, the defendant No. 1 executed a will with the ill motive of bequeathing all the properties to defendants 2 and 3. The plaintiff instituted T.S.2/49 for partition of the ancestral lands located at Angapada. That suit was decreed and the decree was affirmed even by this Court. On the plea that the properties now in the suit which are located . at village Turada are also the joint family properties and have been left out of partition on the earlier occasion, the present suit has been filed. It is claimed that on 27-9-1958 the defendant No. 1 executed the sale deed for the suit land in favour of defendants 4 and 5 which is a void transaction. The plaintiffs claim that they have their 1/4th interest in the suit lands.
The defence of defendants 1, 2 and 3 jointly is that the suit is barred both under Section 11 and under Order 2, Rule 2, Civil Procedure Code. The suit property is not the joint family property, but it is the self-acquired property of defendant No. 1. The plaintiff is not in possession of this property for more than 12 years and as such his present suit is barred by limitation.
 The learned trial Judge came to hold that the suit lands were ancestral joint family property; the suit was not barred under Sec-tion 11 nor under Order 2, Rule 2, Civil Procedure Code; the suit was also not bad on the theory of partial partition. He further found that the sale deed dated 27-9-1958 in favour of defendants 4 and 5 was not binding on the plaintiffs and he accordingly decreed the suit.

----------------------------------------------------------------------------------------------Orissa High Court
Debarchan Pradhan And Ors. vs Bhagirathi Pradhan And Ors. on 16 December, 1969
Equivalent citations: AIR 1970 Ori 231
Author: R Misra
Bench: R Misra
JUDGMENT
R.N. Misra, J.
1. This is an appeal by the plaintiffs (the original plaintiff having died, his legal representatives) in a suit for declaration that the sale deed dated 27-9-1958 executed by defendant No. 1 in favour of defendants 4 and 5 is fraudulent and does not confer title on the transferees. Their claim was accepted by the trial Court, but has been negatived by the lower appellate court. Hence the plaintiffs are in second appeal against the reversing judgment.
2. A short genealogy would be useful to indicate the mutual relationship of the parties.
BHAGIRATHI
|
---------------------------------------
| | |
Ananta Achuta Adwaita
D.2 (Plaintiff) (D 3)
-Jasoda -Duhita
(D 4) (. 5)
The suit property is claimed to be the joint family property of the plaintiffs and defendants 1 to 3. In 1948, the defendant No. 1 executed a will with the ill motive of bequeathing all the properties to defendants 2 and 3. The plaintiff instituted T.S.2/49 for partition of the ancestral lands located at Angapada. That suit was decreed and the decree was affirmed even by this Court. On the plea that the properties now in the suit which are located . at village Turada are also the joint family properties and have been left out of partition on the earlier occasion, the present suit has been filed. It is claimed that on 27-9-1958 the defendant No. 1 executed the sale deed for the suit land in favour of defendants 4 and 5 which is a void transaction. The plaintiffs claim that they have their 1/4th interest in the suit lands.
3. The defence of defendants 1, 2 and 3 jointly is that the suit is barred both under Section 11 and under Order 2, Rule 2, Civil Procedure Code. The suit property is not the joint family property, but it is the self-acquired property of defendant No. 1. The plaintiff is not in possession of this property for more than 12 years and as such his present suit is barred by limitation.
4. The learned trial Judge came to hold that the suit lands were ancestral joint family property; the suit was not barred under Sec-tion 11 nor under Order 2, Rule 2, Civil Procedure Code; the suit was also not bad on the theory of partial partition. He further found that the sale deed dated 27-9-1958 in favour of defendants 4 and 5 was not binding on the plaintiffs and he accordingly decreed the suit.
5. On appeal by the defendants, the learned appellate Judge affirmed the findings of the trial Court that the suit land was the joint family property. He further found that the property under Ext. 8 was the self-acquisition of Achuta and was not liable for partition. He, however, came to find that the suit was barred under Order 2, Rule 2, Civil Procedure Code and was also barred by limitation.
6. In view of the concurrent finding in the courts below that the property is the joint property and in view of the admitted status of the plaintiff as a co-sharer, normally relief of partition could be granted.
7. The only stumbling block in the way in the opinion of the lower appellate Court is that the present claim is barred under Order 2, Rule 2, Civil Procedure Code. The single point for determination in the second appeal, therefore, is as to whether the present claim for partition is barred under Order 2, Rule 2, Civil Procedure Code. Order 2, Rule 2, Civil Procedure Code reads thus :
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards ,sue for any relief so omitted.
Explanation : ....."
8. In a suit for partition in respect of a co-sharer and in respect of a coparcener a distinction in law has always been maintained. For a coparcener who seeks to separate himself from the hitherto joint corpus the cause of action arises in respect of the entire joint property at a single point of time while in respect of a co-sharer joint tenant it may arise at different points or time in respect of different items of property. Their Lordships of the Judicial Committee examined the scope of Order 2, Rule 2, Civil Procedure Code at considerable length in the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78. Sir Madhavan Nair, J., speaking on behalf of the Board summarised the principle thus :
"The principles laid down in the cases thus far discussed may be thus summarised :
(1) The correct test in cases falling under Order 2, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit."
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in sub-Stance they are identical.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers ..... to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."
9. Their Lordships of the Supreme Court examined the. scope of Sub-rule (3) of Order 2, Civil Procedure Code in the case of Shankar Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352. They dismissed the action in the said case holding that it was barred under the said sub-rule as the plaintiff had omitted to sue for a relief which was available to him when the suit in respect of the other items of claim had been filed on an earlier occasion. My Lord, the present Chief Justice had also occasion to consider the applicability of Order 2, Rule 2, C. P. C, in the case of Union of India represented by the General Manager, South Eastern Rly v. Iswar Sahu Hadibandhu Sahu, (1966) 8 O J D 26 and referring to the position indicated in the aforesaid decision of the Privy Council, held on the facts of that case that the subsequent claim was barred under Order 2, Rule 2, C. P. C.
10. A claim in respect of certain joint family property for partition directly came up for decision in some cases. Examining the applicability of Order 2, Rule 2, C. P. C. as a bar for a subsequent claim for partition, in respect of certain property left out in the earlier suit, Chief Justice Wanchoo in a Division Bench case reported in A. I. R. 1954 Raj 269 indicated the law to be thus :--
"The reason why in the case of partition between coparceners all the property must be thrown in the hotchpot except for certain well-recognised exceptions is that where a member of a joint Hindu family who broke up the joint status, wants the joint family property to be divided, the cause of action arises at one time, and he must therefore include every item of property in the suit. But in the case of tenants-in-common, it is not necessary that the cause of action for partition of every item of the property which is held in common must arise at the same time. Therefore, it may be possible in cases of co-tenants that a suit may lie for one item of property at one time and for another item at another time.
xxxxx
It is clear, therefore, that in the case of tenants-in-common it is not essential that all the property held in common should be brought into hotchpot though it is desirable that as far as possible, in order to avoid multiplicity of suits, all the property should be included in one suit. It is, however, for the Court in each case to decide whether the case is of such a nature that the plaintiff should be ordered to include the remaining property also in the suit for division, provided of course the property is within the jurisdiction of the Court in case it is immovable property. But the suit, in our opinion, cannot be thrown out on the mere ground that all the property which is capable of partition was not included".
11. Admittedly in the present case the question of partial partition was not raised in the earlier litigation, Title Suit No. 2/49 and that suit was entertained for disposal on merit. If it had been contended that some other properties were left out, it was quite possible that action would have been taken by the present plaintiff who was also plaintiff in the said suit to have the disputed property included in the hotchpot.
12. A similar question in a suit for partition arose for determination in a Patna case. Raj Kishore Prasad, J., in the case of Sm. Jasoda Kumari Sewani v. Sm. Satyabhama Sewani, AIR 1960 Pat 76, after examining the law applicable to a case of this type held :
"..... it is manifest that, after a decree has been passed in a suit for partition of the joint family property, a subsequent suit for partition may be brought in respect of any portion of that property which, by mistake, or inadvertence, or due to ignorance or to oversight, or by consent of the co-owners, was omitted in the former suit, and if no objection is taken by the party concerned to a partial partition, the subsequent suit for partition of the portion of the property so left out and still held in joint possession, would be maintainable. If by mistake, or the like, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. In such a case, there could be no omission to sue within the meaning of Rule 2 of Order 2 of the Code."
13. In a more recent case dealing with this aspect of the matter, in the case of Venkatasubbamma v. Venkata Subbamma, AIR 1964 Andh Pra 124, Jaganmohan Reddy, J., (as he then was) considered many authorities and ultimately held that a suit would lie in almost similar circumstances as in the present case. Keeping in view the legal position as indicated above I would hold that the present claim was not hit by Order 2, Rule 2, Civil Procedure Code. The learned appellate Judge has indicated no material to sup-port his finding that the plaintiff intentionally did not include the suit land in his previous partition suit. On the other hand, the learned appellate Judge has stated :
"It shall be deemed that the plaintiff intentionally did not include."
There could be no scope to arrive at a finding by speculation or by drawing an inference from mere fact that on the earlier occasion, this item had been left out in the hotchpot in the partition. The learned appellate Judge came to his conclusions on a wrong basis of the legal position and as such his conclusions were also vitiated. I would hold in view of the concurrent finding that the property had been acquired from the Joint family funds, and the plaintiffs' present claim is entitled to succeed. The fact that the defendant on the earlier occasion had not raised the plea that the present suit property had been left out from the hotchpot, the assertion of the plaintiffs in the present case that the existence of this property as a joint family asset was not known to him and the legal position that such a suit in certain circumstances is maintainable lead me to accept the claim of the plaintiffs in this case. Mere failure of existence of this property would not bring the case within the bar provided under Order 2, Rule 2, Civil Procedure Code. It is quite possible that the plaintiff on the earlier occasion did not have materials to find that this was a property which had been acquired out of joint family nucleus. Subsequently he came to find that this was acquired out of joint family nucleus and was, therefore, partible. More or less that is his case now. I would therefore vacate the judgment of the lower appellate Court and restore that of the trial Court and hold that the plaintiffs are entitled to their claim of 1/4th share in the suit property.
14. The appeal succeeds and is allowed. Since this is a suit for partition, I would direct both the parties to bear their own costs up to this stage.


grandson would get right in the grandfather's property.

grandson would get right in the grandfather's property.


The principles laid down in the above said decisions throw much light on the subject. In view of the illuminating judicial pronouncements as decided in Chander Sen case supra Schedule-I in the Hindu Succession Act, 1956, does not include a son's son. When a hindu dying interstate, the first class heirs namely, the heirs mentioned in Schedule-I, namely, son, daughter, widow and brother shall take equally to the exclusion of the other heirs, including son's son. The Hon'ble Supreme Court has held in that case that the earlier law which gives right to a son's son, seized to exist on the advent of the Hindu Succession Act. By introducing a scheme of devolution under Section 8 of the Act, a son's son of the hindu interstate has specifically been excluded. The earlier position that the grandson would get right in the grandfather's property did not continue after passing of the Act. The Hon'ble Supreme Court has described this position in the said decision as the hindu law giving a right by birth in such property "seized to have effect". In view of this legal position, the plaintiff in the present case did not acquire right by birth in the property which came to the hands of his father by partition after the death of his grandfather. Hence, he is not entitled to get partition in the property. Both these points are answered in negative.

 Following the settled positions as enunciated by the Hon'ble Supreme Court and the Full Bench of this High Court, this Court is of the opinion that the claim of the plaintiff is barred under Section 8 of the Hindu Succession Act since he has been specifically excluded from inheriting the property belonged to his grandfather. Hence, the judgment and decree of the Court below deserves to be set aside and it is accordingly set aside. The appeal has to be allowed.

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Madras High Court
M.Kumaran vs J.Rajesh (Minor) on 11 August, 2010
DATED: 11.08.2010
CORAM:
THE HONOURABLE MR. JUSTICE S.PALANIVELU
A.S.No.609 of 2003
1.M.Kumaran
2.K.Santhi ... Appellants
- Vs -
1.J.Rajesh (Minor)
(Rep. by his mother and natural Guardian J.Gomathi)
2.R.Jayagopal ... Respondents
Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 30.01.2003 passed in O.S.No.1698 of 1997, on the file of the II Additional City Civil Judge, Chennai. For Petitioner : Mr.S.Udayakumar
For Respondent 1 : Mr.N.D.Bahety
For Respondent 2 : M/s.R.S.Ganesh Babu
***
JUDGMENT
This appeal has been preferred by the unsuccessful second and third defendants against the judgment and decree dated 30.01.2003 made in O.S.No.1698 of 1997, on the file of the II Additional City Civil Judge, Chennai.
2. The following are the averments in the plaint succinctly stated:
2(i). The first defendant is father of the plaintiff. The first defendant is the only son to his parents. At the time of marriage, the first defendant was doing plastic business separately and earning a sum of Rs.4,000/- per month. After the marriage his wife came to know that her husband was in the habit of consuming alcoholic drinks and addicted to the same and consequently his father could not meet the family expenses. Both the plaintiff and his mother were treated cruelly by his father/the first defendant. A complaint was also made with regard to dowry harassment with Women Police Station, Thousand Lights, Chennai. 2(ii). The plaintiff is not in possession of the suit property. Since the first defendant is leading wayward life, his sister G.Lalitha filed a partition suit in C.S.No.1728 of 1993 in this Court for partition and separate possession of the properties of N.Ramakrishnan i.e., the father of the first defendant. The said suit was decreed on the basis of a compromise memo wherein the first defendant has been allotted ancestral property to an extent of 1811 sq. ft. The plaintiff has stated that he is entitled to half share in the above said property. The first defendant is trying to alienate the above said property and that would deprive the valuable rights of the plaintiff to the suit property. Hence, the plaintiff has filed a suit for partition of his half share in the suit property. The first defendant is liable to pay mesne profits from the date of plaint till the date of separate possession of the half share.
3. The written statement filed by the second and third defendants contains the following averments:
3(i). The defendants deny all the allegations made in the plaint and they are aware of the alleged habits of the plaintiff's father and alleged treatment meted out to the mother of the plaintiff. The first defendant was the absolute owner by virtue of a decree passed in C.S.No.1728 of 1993 by this Court. The first defendant has offered to sell the property and approached these defendants to buy the same for a valuable consideration and accordingly the defendants purchased the schedule mentioned property under two different sale deeds from the first defendant on 03.04.1997 and 17.04.1997 and registered as Doc.No.357/97 and 392/97 respectively. These defendants have paid the entire sale consideration to the first defendant and taken possession of the schedule mentioned property. Subsequent to purchase, the electricity connection has been transferred in the name of these defendants. The property tax is also assessed in the name of the defendants. The defendants 2 and 3 had also obtained patta on 04.06.1997. 3(ii). The defendants have categorically stated the above facts in the counter affidavit filed in the impleading application. The plaintiff is not entitled to any share in the property in view of the fact that before the plaintiff's birth the plaintiff's mother had lived separately and afterwards only the plaintiff was born and hence the claim made by the plaintiff is not sustainable in law. Having regard to the circumstances of the case and having regard to the birth of the plaintiff, the plaintiff's claim of the alleged half share in the plaint schedule property is not tenable and therefore the claim made by the minor plaintiff has to be rejected. The plaintiff's mother is filing this vexatious suit only to give trouble to the defendants 2 and 3 including the first defendant. Therefore, they prayed for dismissal of the suit with costs.
4. After analysing the pleadings, evidence and the records, the learned II Additional Judge, City Civil Court, Chennai, has passed the preliminary decree as prayed for with costs. Aggrieved against the above said judgment and decree, the appellants who are the second and third defendants in the suit are before this Court.
5. The following points have arisen for consideration in this appeal:-
(i) Whether the plaintiff acquired right by birth in the property which fell into the share of the first defendant/his father?
(ii) Whether the plaintiff is entitled to get partition as prayed for?
6. The property originally belonged to the father of the first defendant by name N.Ramakrishnan. The first respondent/plaintiff is son of the first defendant. The plaintiff being minor is being represented by his mother and natural guardian J.Gomathi. It is alleged in the plaint that her marriage with the first defendant was held on 01.03.1993 in Chennai, that it was told that at the time of marriage that he was earning about Rs.4,000/- per month, that after the marriage, she came to know that he was a drunkard, that he perpetrated cruelty, beat her and also used to throw lighted match sticks upon her and that he ignored her without providing food and cloth. The plaintiff was born on 06.01.1994.
7. The first defendant's sister one G.Lalitha filed a suit in C.S.No.1728 of 1993 on the file of this Court for partition and separate possession of properties belonging to N.Ramakrishnan. On 03.02.1994, a compromise was entered into between the parties and an extent of 1811 Sq.ft. in old Door No.91 and 94 and New Door No.3, Pulipon Bazaar Street, Triplicane, Chennai, was allotted to the share of the first defendant. It is claimed that the plaintiff is entitled to half share in the suit property under premise that it is ancestral property of first defendant.
8. The second respondent/first defendant remained ex parte in the suit and before this Court as well. On 03.04.1997 and 17.04.1997, he executed two sale deeds in favour of the appellants in Ex.B2 and B3, with regard to the property which he obtained the above partition suit. After the purchase, the appellants have been enjoying the same by paying property tax etc.
9. It is the bottom line contention of the learned counsel for the appellants Mr.S.Udayakumar, that the first defendant/divided son became the absolute owner of the property allotted to him in the partition and he can deal with the property as per his wish and desire and his son/the plaintiff does not get any right in the property by birth, that he cannot claim to be coparcenar in the property nor is he a co-sharer and the suit for partition is not maintainable.
10. Contending contra, the learned counsel appearing for the first respondent/plaintiff Mr.N.D.Bahety, would submit that since the plaintiff was born to the first defendant, he acquired rights in the property which is ancestral property which admittedly originally belonged to the father of the first defendant and that the partition suit is very well within the frame of law.
11. In support of his contention, the learned counsel for the appellants would place much reliance upon a Full Bench decision of the Supreme Court reported in AIR 1979 Madras 1 (The Additional Commissioner of Income tax, Madras-1 v. P.L.Karuppan Chettiar), wherein it has been held that the divided son became the absolute owner of the property which he got from his father and his son would not get any right in the property. The relevant portion in the judgment are thus: 5. This is a case where a person who had obtained the property under partition died. His name was Palaniappa. When he died, his son Karuppan was alive. We are concerned with the property which Palaniappa had obtained in the partition. We have dealt with the effect of Section 8 earlier and it is clear that here Karuppan alone took the properties of his father Palaniappa which the latter had obtained in the partition, and irrespective of the question whether it was ancestral property in the hands of Karuppan or not, he would exclude his son. Since the existing grandson at the time of the death of the grandfather has been excluded, we think that an after-born son of Karuppan will also not get any interest which Karuppan inherited from his father. Thus, the principles of Hindu Law are not applicable.
12. Later the Hon'ble Supreme Court in the case of Commissioner of Wealth Tax, Kanpur and others v. Chander Sen and Others (1986) 3 Supreme Court Cases 567, had an occasion to deal with this proposition of law referred the view taken by the Full Bench stated above and held that, Class-I heirs listed in the Schedule under Section 8 of the Hindu Succession Act, 1956 makes the son of an intestate to become an absolute owner of the property which he derives from his father and constitutes the property as absolute one and his son has no right by birth over such properties. Their Lordships also referred to the following decisions of various High Courts and approved the view taken by other High Courts excepting the Gujarat High Court whose decision has been overruled. (1) CIT v. Ram Rakshpal, Ashok Kumar, (1968) 67 ITR 164 (All).
(2) Addl. CIT v.P.L.Karuppan Chettiar, (1978) 114 ITR 523 (Mad).
(3) Shrivallabhdas Modani v. CIT, (1982) 138 ITR 673 (MP)
(4) CWT v. Mukundgirji, (1983) 144 ITR 18 (AP)
13. The relevant portion affirming the decisions of the High Courts are as follows:
(Para 18) "Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons. It followed the Full Bench decision of the Madras High Court as well as the view of the Allahabad High Court in the two cases noted above including the judgment under appeal." (Para 19) "Accordingly the property which devolved upon heirs mentioned in Class I of the Schedule under Section 8 constituted the absolute properties and his sons have no right by birth in such properties." (Para 25) "In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, the Madhyapradesh High Court and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore."
14. The above said P.L.Karuppan Chettiar's case decided by this Court has been confirmed by the Hon'ble Apex Court which is reported in 1993 Supp (1) Supreme Court Cases 580 (Commissioner of Income Tax v. P.L.Karuppan Chettiar). Operative portion of the judgment is as under: "In view of the decision of this Court in CWT v. Chander Sen (1986) 3 SCC 567: 1986 SCC(Tax)641:(1986)161 ITR 370, the question referred to this Court directly by the Tribual under Section 257 of the Income Tax, 1961 is answered in favour of the assessee by saying that the income from the properties in question is not assessable in the hands of the assessee Hindu Undivided Family. The reference is answered accordingly. There will be no order as to costs."
15. He also placed reliance upon another decision of the Hon'ble Supreme Court reported in (2008) 3 SCC 87 (Bhanwar Singh v. Puran and others), wherein also, Their Lordships have laid down the same proposition of law. It is observed therein that the learned first appellate Court, however, reversed the same findings, inter alia, holding that upon the death of Bhima, Sant Ram became a co-sharer of the property and having regard to the entries of the jamabandi for the year 1973-1974, it had been established that he, along with his sisters, having inherited the same in equal shares, the property lost the character of ancestral property in terms of Section 8 of the Hindu Succession Act. In the end of the judgment it is observed that, it is therefore, not correct to contend that the Court of first appeal arrived at a self-contradictory or inconsistent finding.
16. In the said case, earlier decision of the Hon'ble Supreme Court in Sheela Devi v. Lal Chand,(2006) 8 SCC 581 is referred and distinguished. In the said case, it is decided as follows: "12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (see C.Krishna Prasad v. CIT (1975) 1 SCC 160 : 1975 SCC (Tax) 16). But once a son is born, it becomes a coparcenary property and he would acquire an interest therein."
17. The Hon'ble Supreme Court is of the opinion that when the properties devolved upon the divided sons and daughters per capita and not per stripes, each one of them was entitled to alienate their shares, particularly, when different properties were allotted in their favour and in a case of this nature, the joint coparcenary does not come. It was further held that the first appellate Court rightly held that Section 6 of the Hindu Succession Act was not attracted to the facts of the case as sisters having partitioned their properties became owners to the extent, he had the requisite right to transfer the lands falling within his share.
18. The sum and subsistence of the above said decisions go to the effect that when a divided son or daughter has got the property belonging to their father in a partition, whether it is ancestral or self-acquired property of the father, they become absolute owners of their respective shares and they can deal with the properties exclusively excluding their sons. The son of a divided son does not get right from his father by birth who is excluded by virtue of Section 8 of the Hindu Succession Act and he cannot become a coparcenar in the property in question.
19. Similarly, following the law laid down in P.L.Karuppan Chettiar's case above, this Court in (2007) 4 MLJ 993 (N.Ramachandran v. E.Varadarajan and another), has held that if two sons inherit the self-acquired property of father, the grandson has no right in the property. In the case on hand, it is not pleaded whether the suit property is ancestral property of N.Ramakrishnan or his self-acquired property. Whatever may be, either it is ancestral or self-acquired property of N.Ramakrishnan, the position is the same when the divided property reaches the hands of a son who would become absolute owner therefor and his son does not get interest in the same.
20. The principles laid down in the above said decisions throw much light on the subject. In view of the illuminating judicial pronouncements as decided in Chander Sen case supra Schedule-I in the Hindu Succession Act, 1956, does not include a son's son. When a hindu dying interstate, the first class heirs namely, the heirs mentioned in Schedule-I, namely, son, daughter, widow and brother shall take equally to the exclusion of the other heirs, including son's son. The Hon'ble Supreme Court has held in that case that the earlier law which gives right to a son's son, seized to exist on the advent of the Hindu Succession Act. By introducing a scheme of devolution under Section 8 of the Act, a son's son of the hindu interstate has specifically been excluded. The earlier position that the grandson would get right in the grandfather's property did not continue after passing of the Act. The Hon'ble Supreme Court has described this position in the said decision as the hindu law giving a right by birth in such property "seized to have effect". In view of this legal position, the plaintiff in the present case did not acquire right by birth in the property which came to the hands of his father by partition after the death of his grandfather. Hence, he is not entitled to get partition in the property. Both these points are answered in negative.
21. Following the settled positions as enunciated by the Hon'ble Supreme Court and the Full Bench of this High Court, this Court is of the opinion that the claim of the plaintiff is barred under Section 8 of the Hindu Succession Act since he has been specifically excluded from inheriting the property belonged to his grandfather. Hence, the judgment and decree of the Court below deserves to be set aside and it is accordingly set aside. The appeal has to be allowed.
22. In the result, the appeal is allowed. No costs. The Suit in O.S.No.1698 of 1997, on the file of the II Additional City Civil Judge, Chennai, is dismissed without costs.
11.08.2010
Index : Yes
Internet : Yes
srm

S.PALANIVELU, J.